Lee Casey, lawyer in private practice, former Justice Department official in the Reagan administration and the first Bush administration
Bruce Fein, former associate deputy attorney general, Republican counsel during the Iran-contra hearings, and founding partner with the Lichfield Group
Mickey Edwards, Republican member of Congress for 16 years and current program director at the Aspen Institute
Host: Diane Rehm

Diane Rehm: Justice Sandra Day O'Connor retired last month after 24 years on the Supreme Court. Last week she spoke of what she saw as "threats" to judicial independence in this country. But many argue that it's the judiciary that has over-reached. Joining me to talk about shifts in judicial, executive, and congressional power are Lee Casey, Bruce Fein, and Mickey Edwards... I'd like to start by asking each of you what your reaction was -- and your interpretation and the comments reportedly madeby Sandra Day O'Connor last week.

Bruce Fein: I don't think this is a new worry. I don't think that there's a crest now of opinion in Congress and efforts to curtail judicial jurisdiction to decide constitutional questions or, indeed, as have come from some quarters like Tom DeLay to impeach federal judges and Supreme Court justices who members of Congress think have made ill-advised decisions. That has been a refrain that's been chronic for the past fifty years, I suppose, beginning after Brown vs. Board of Education ordering desegregation of schools. You had calls for impeaching Earl Warren and the idea that the Supreme Court ought to be denied jurisdiction to hear cases involving racial discrimination. But it was established early on in our history concerning the impeachment of Samuel Chase in 1804 by the House of Representatives and a trial in the Senate -- where he was acquitted -- that it is not proper to impeach and remove a federal judge because there's a disagreement with his opinion. That was reiterated most recently by the late Chief Justice William Rehnquist in his "state of the judiciary" address where he said the way in which you change judicial doctrines is through the orderly process of replacingi members as they retire or die and the new president and new Congress appoint new justices. But I do think Sandra Day O'Connor was reminding the country in a time of stress where, in the wake of 9/11 we had an executive branch saying they could detain anyone as an "illegal combatant" and you had no judicial review whatsoever. So the president could pick up anybody, citizen or not, off the streets and say "You're an illegal combatant so you're in a Navy brig for the rest of your life without any judicial review." The recognition that judicial independence is there to check the inclination of other branches to over-reach is one that we ought to be very very precious about and look with skepticism on these efforts to suggest that the proper remedy for ill-advised judging is to criticize the decision or to wait until you have new judges, not impeach the justices and remove the independence from the institution.

Rehm: Lee Casey?

Lee Casey: Well, I think Justice O'Connor was responding in many ways in a very human way to the criticism of the Court has been increasingly getting. I think that much of that criticism is deserved. The courts have gotten into areas that are primarily political. They're into policymaking and if you're going to play on that field you're going to have to expect, ultimately, to be the subject of some pretty heavy, political criticism. I don't think judges are really very well trained up for that. They don't come up through the political system. They didn't fight for that school board seat and have nasty things said about them by their neighbors and such. And so I imagine it's kind of hard to take some of that. But if you're going to continue to make policy, then people have a right to criticize.
Rehm: Mickey Edwards...
Mickey Edwards: Well, I don't have any problem with the idea that justices or judges are subject to criticism just as anybody else in the public arena is. They should not be protected from criticism. But it's a step beyond that to suggest -- Bruce mentioned Tom DeLay and others have talked about impeaching judges whose view they don't like or whose opinions they don't like. One of the basic protections that we have in the Constitution is the way we have all of these different branches who are deliberately set up against each other, as checks on each other. To make that happen the branches have to be independent. That means the judiciary has to be independent. Judges have to feel free to rule according to what they believe the case before them requires and not be worried whether the president is going to approve what they say, not be worried about what the public opinion polls have to say. So to the extent that Justice O'Connor is making the case that the judiciary's independence needs to be preserved, I think that's absolutely valid.

Fein: And think, if I could add, that it's required in order to give legitimacy to judicial rulings that they have independence. In my judgment there'd be much less voluntary compliance with a Supreme Court decree if it's thought, Well, if they came out the other way, the president could fire them or they otherwise could get removed by the House of Representatives so this really isn't a genuine interpretation of the Constitution. And with regard to the justices themselves, they haven't been reluctant to accept criticism. I remember Chief Justice William Howard Taft welcomed criticism of the Court's decisions saying, That's how we get errors corrected. But it's one thing to accept criticism it's another to say, If we think you got it wrong, you're removed from office. It's just like we can criticize the president but he doesn't lose his tenure because we think he made a flawed decision.

Rehm: ... Mickey Edwards, some of the newspapers and TV commentators around the country interpreted Sandra Day O'Connor's words as suggesting that we as a country are falling into a near dictatorship. Those were some of the remarks that followed her speech, though she never used those words. Why do you believe her words struck such a cord this time when, as Bruce Fein has just pointed out, she's made similar comments in the past?

Edwards: Well, I think part of it is because the President and the people around the President have tried so very hard to make the argument that, number one, the President has Constitutional authority to be able to do the things he's doing, which of course... he must have a different copy of the Constitution than the one I've read! That's part of it. But also the President equates criticism of what he's doing -- whether it's warrantless wiretapping or whatever -- as somehow undermining his ability to defend the country or provide our security. So I think people feel there's a lot at stake here. But I think what she said has a lot of merit, not that we are on the verge of a dictatorship -- I don't think that -- but we do see a great deal of over-reaching by this president. Other presidents have over-reached. Thomas Jefferson over-reached. Harry Truman. FDR. But what is different this time and what makes this rise to a higher level of concern is that the other branches of government -- in this case the Congress -- are too willing to cede the authority and not stand up for their own Constitutional not rights but obligations to be a check on the President. That's what makes this period so dangerous.

Rehm: Lee Casey: How would you assess each of the branches of government now in terms, in terms of power, in terms of the weight they carry?

Casey: It's clearly the case that during a period of armed conflict, the executive exercises more power than in a period of peace. I disagree with my colleagues that the President has attempted to exercise too much power. I think he has a firm grounding in the Constitution for what he has argued. I think Congress has been a little more cautious since 9/11. I think Congress ought to be, because the executive is the branch which is primarily vested with the conduct of an armed conflict. But Congress has not been a lapdog. The best example of that is the difficult the President had getting the Patriot Act re-authorized. That was a serious battle. And some compromises were made. As to the judiciary, we often think of the judiciary as the weakest branch, but the courts have been reviewing the President's claims of power. They have agreed with many of them. They have disagreed with some of them. And the President has accepted those decisions. I think the system is working pretty well.

Rehm: It's interesting: In the New York Times editorial page yesterday, writers wrote that "the battle to save the Constitutional balance of powers has moved to the judiciary, suggesting that Congress has all but give up."

Fein: I think that's right by and large. I think back to a similar challenge to judicial independence in an indirect way -- Franklin Roosevelt's legislation that would have enabled him to pack the Supreme Court with New Dealers to overcome decisions he didn't like. And there the Congress stood up to him, even though it was overwhelmingly "Democrat," his same party. And it rebuffed that same effort to manipulate the judiciary. At present the Congress not only in the area of warrantless surveillance but power of the purse where they're ready to yield line-item veto to the President, they're willing to yield to his claims of executive privilege, they don't even know what happened in Hurricane Katrina, they don't object to regulatory agencies turning state tort law on its head, and without Congress there, it's more important that the courts be independent.

Rehm: Joining us now is NPR's Nina Totenberg. ...I know you were present at Justice Sandra Day O'Connor's speech the other day. I'd be interested in your reactions and what you heard from others who were in that auditorium.

Nina Totenberg: Well, I didn't stick around afterwards because I thought it was a pretty good story! The speech Justice O'Connor gave, though there was sort of a light touch in her tone, really kind of peeled the paint off the wall and put it to her audience, which was an audience of corporate attorneys from some of the largest companies in the country. She really put it to them, that it's up to them to protect the judiciary from what in her view are assaults that threaten the independence of the judiciary.

Rehm: Was no one recording that speech?

Totenberg: I believe Georgetown University recorded it for their archives, but we were not allowed to tape it.

Rehm: Isn't that somewhat unusual?

Totenberg: No, it's very usual. Supreme Court Justices frequently do not allow their talks to be taped. Some more than others. She and Justice Scalia, for example. I'm going to one Justice Kennedy is giving later this week and he's not allowing taping either. But they allow press coverage.

Rehm: I see. So from your perspective, did you agree with some of the headlines that came out in newspaper and TV commentary that Justice O'Connor was really warning that the nation is moving toward a dictatorship?

Totenberg: I think that's slightly overstating it. She was warning that if we don't take steps now, we could move towards a dictatorship. She said, very specifically -- she took on Congressman DeLay not by name, and Senator Cornyn not by name, quoting some of the things they had said about the judiciary. She talked about some of the proposals, proposals from some conservative critics of the Court, to strip the Court of jurisdiction, to cut the Court's budget, mass impeachments, and she said that those are the kinds of proposals, when taken to punish the Court for actions that the Congress disagrees with, those are the kinds of actions that threaten the independence of the judiciary and that are reminiscent of the kinds of actions taken in dictatorships or in the spiral towards dictatorship in other countries. She pointed to one in particular -- Zimbabwe. She called it a "nightmarish dictatorship." Then she said, It takes a lot of degeneration before a country becomes another Zimbabwe, but we should "avoid these ends by avoiding these beginnings."

Rehm: What kind of steps was she talking about specifically that the country should be taking now?

Totenberg: Basically she was saying, Don't tolerate the kinds of rhetoric that leads to increased death threats; don't accept the proposals to essentially gut the power of the judiciary as punishment for decisions that some people disagree with.

Rehm: Nina, she has made similar comments in the past -- maybe as long as a year ago. Why do you think that this time it was so important?

Totenberg: Well, my suspicion is that she's made some of these comments before, maybe not in such a cohesive way. As it happens, I was the only daily journalist who was there and I wrote a story about it. Justices give hundreds and hundreds of speeches and we who cover them do not go to all of them! Because frankly most of them are pretty boring and we've heard them before! But this was a pretty cohesive defense of judicial independence and an attack on the attackers. And I thought it was a pretty good story so I wrote it. She has not released a text. There is no tape available. And therefore my story became... the record in this case. I did call Georgetown and asked them to check my quotes against their tape before I wrote it the story, so I am quite confident that the quotes are accurate. She said things like... talking about some of the proposals to strip the Court's jurisdiction and cutting the budget, she said, "I'm against judicial reforms driven by nakedly partisan reasoning." That's the kind of language she used. It was pretty tough language.

Rehm: Thank you so much for joining us, Nina. Lee Casey, I'm interesting in your comments that in fact the judiciary has become more political, has gotten into political issues and therefore deserves the kinds of criticisms it's getting. Give me examples of what you mean.

Casey: Well of course the crowning example that everyone talks about is Roe v. Wade. In 1971-72, the country was undergoing an often bitter political process of working out what the issue of abortion would result in, what kind of restrictions there would be. And in 1973, I believe it was, the Supreme Court came down and said, We're settling this and this is going to be the law. It cut off that political debate and it imposed a system that for the past thirty years has in many ways dominated all sorts of questions about the judiciary: what is the proper judicial role, who gets on the Court. The Supreme Court appointments are now political campaigns, straight out. Indeed, people have commercials and such. That was never the case before. In many ways, that single decision warped out Constitutional system and turned the judiciary into not just a third branch of government but a third political branch of government. While it remains on the books, I think we're going to continue to see.... because frankly my question to Justice O'Connor is, Will there be no check on the judiciary if we can't even criticize! And as to the question of the rhetoric, I think I would quote to her something she wrote in a case called Boos v. Barry some years ago in 1988 where she said, "As a general matter, we have indicated that in public debate our own citizens must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." That's what free debate is and sometimes it hurts.

Fein: I think Lee is distorting what Sandra Day O'Connor said, and indeed all of the Justices. They aren't objecting to criticizing the Court's decisions and seeking to get them reversed or have them rethought by sober second thoughts. But she's saying, Don't take away the jurisdiction to decide cases. Don't impeach us and remove us and weaken the institution because you disagree with an opinion... That's quite different than just saying you can welcome criticism; anyone can get it wrong as a Justice; they're not infallible. And I think that Justice O'Connor was a little bit askew in suggesting that it was up to the private bar corporate attorneys to rein in the criticism. I think it's an obligation of the President of the United States and of members of Congress too to say, Hey, let's halt this! We've got three branches as you've pointed out and that the founding fathers pointed out to try to check over-reaching. Each has to retain their due role and separateness in these scheme.

Rehm: At the same time, Mickey Edwards, in her speech she seemed to be specifically citing Congress for the attacks on the judiciary. Do you think that was fair?

Edwards: Well, I think it was fair in this regard: there were some members of Congress -- Tom DeLay is one but not the only one -- and there have been times when the criticism has gone too far. And in fact I think it would have been appropriate for the President and members of Congress like Tom DeLay to attack these outrageous threats again members of the Court. They didn't do that. But the greatest problem in Congress -- because most members of Congress are not doing these kinds of attacks, but they also don't do anything. Congress has become almost a passive bystander to what is one of the most critical Constitutional crises that we've had in a very long time and that's what the problem is.

Rehm: Lee Casey talked about the Roe v. Wade decision as being somehow at the heart of this. And the decisions that have come since that time as really representing the power of the judiciary to reign supreme...

Edwards: Diane, as long ago as Marbury v. Madison when the Supreme Court claimed powers that the Constitution did not give it. But there is a proper procedure for dealing with it. It's not impeachment. It's not threats against the lives of members of the Court. Court decisions that are bad like Plessy v. Ferguson and others. Court decisions can overturned. New justices come onto the bench. New president can get elected who can appoint different people to the bench. So there are proper procedures for dealing with decisions that you disagree with.

Fein: And there's another area and that's Constitutional amendment. More than half a dozen Constitutional amendments have overturned Supreme Court precedents. That doesn't mean it should be routinely used, but there are ways in which the political consensus of the country can override the US Supreme Court. It's difficult and we shouldn't invite Supreme Court error. I've criticized Roe v. Wade. But the way in which you try to resolve that is to try to convince a future Court that it was wrongly decided, or to get a Constitutional amendment, not throw out the system of government. I want to point out, too, with regard to some who have criticized Roe: they are arguing that the Supreme Court should have been activist by saying abortion limitations are required by the Constitution. So that their objection isn't really that the Court was activist, they just wanted it to be activist in their direction!

Rehm: Lee Casey, you talked about this government and this country and this administration making its decisions at a time of war. This seems to be a war, not against a country but against a concept, against an activity of terrorism. In that sense, it's sort of a never-ending war? And would you extent those executive powers as long as that "war against terrorism" continues?

Casey: No. I think in fact there are two things going on here. One is a rhetorical war of the Administration, for better or worse (I think worse). The Administration chose to describe this as a war against terror as opposed to a war against Al Qaeda or a war against extremist Islamicist groups. I think this war is governed by the September 18, 2001, authorization by Congress. When Al Qaeda is no longer capable of carrying out military style attacks against, the war will be over and we'll go back to normal.

Rehm: Let's go to [our first caller] Alexander in Michigan.

Alexander: I just have a comment on constitutionally the direction we going in and how this administration uses the Constitution to illegally wiretap -- the port situation, Katrina -- and that "everything is okay." I'd just like to say that everything is not okay. The ripples going through our nation and the world and the direction we're going in has been expressed by O'Connor. I think that's something we need to look at how it is, not how we want it to be. We're headed in the wrong direction and it's bad for the world.

Casey: Well, I think one thing always to keep in mind: merely because the political views you espouse, your preferred policy results have not prevailed, doesn't mean that the system isn't working. And I think there's a lot of that. You can say Congress has abdicated its authority because it hasn't impeached the President because of warrantless wiretapping...It may well be that most members of Congress agree with what the President did and don't think it's illegal. Make your case but don't pretend that because Congress has failed to act, somehow the system isn't working!

Edwards: Well I don't think that's the case at all. The system isn't working and it's not because some people disagree with what the President's policies are. It's because the Congress acts and the President says, I'll take that into consideration and follow your actions if I agree with them! Or if the Congress acts to prohibit torture, the President says, Well, I'll interpret that in the light of what I think my Constitutional power are. So there is over-reaching. I think the President has certainly gone way too far.

Rehm: Explain what's happening this month in regard to the Guantanamo detainees, Bruce.

Fein: Well, this is a situation in which Congress enacted a law that, according to the executive branch, retroactively suspended the authority of any court to consider a habeas corpus petition other than through specified review of a military commission that doesn't have any specific statutory authorization. Although some of the sponsors of the bill said this was not intended to have retroactive application, the Administration is arguing that the Supreme Court has no jurisdiction to hear these cases because the Congress has said that there shall not be authority to decide the constitutionality of detention conditions and the detention authority.

Rehm: I'd like to hear Lee Casey's comment on that.

Casey: Thanks! Two things. One: there is statutory authority for military commissions as the Supreme Court indicated .... [ unclear ]... and all those laws are still on the books. You can find them. Secondly, what the Congress passed was focussing all judicial review in the DC Circuit, in the US Court of Appeals for the District of Columbia Circuit. That's where the cases will now go. There is a question as to whether the cases now pending, both before the Supreme Court and elsewhere, can continue or whether they have to go back and then go through the DC Circuit. That's a good question of statutory interpretation but it hardly suggests that we're on the verge of a nightmare.

Fein: I would agree with that, just that standing in isolation. But I want to go back to the more important elements here. I think Lee had it quite wrong when he suggested that this is not a permanent war. At least the Administration thinks it's a permanent war according to their testimony to Congress.

Rehm: Here's an email from Curt in Maryland. He writes "It's difficult to write and pass good legislation, particularly with such divided partisanship. Often Congress will deliberately leave something ambiguous and 'let the Court sort it out.' So, when the courts are forced to sort it out by the ambiguous laws that Congress passes, they're accused of legislating from the bench. I understand all of this is done with the best of intentions. I don't fault anyone except those who criticize judges for doing what they're supposed to do." Edwards: First of all I'd had to say that the legislation that requires that the President get a warrant before doing surveillance was not ambiguous in any way. The President may choose to disregard it or interpret it differently, but it was not ambiguous. The Congress at time has spoken very clearly and the President just chooses to ignore it.

Rehm: You said during the break, Mickey Edwards, that you're very concerned about what's happening...

Edwards: ...Yes, I'm concerned because when the Congress acts and the President says "I will choose whether or not to follow," as with McCain's legislation on torture, you know that basically is the President saying, "I don't take seriously the right of the Congress to be the legislative branch, the branch that decides what's legal and what's not legal.

Rehm: Let's go now to Virginia in Connecticut:

Virginia: ...Today I heard just a little bit of Justice O'Connor's remarks and perked my ears up and then read the article in the previous day's New York Times. I think it's a warning to the American public, many of whom for one reason or another don't read papers. They don't have the time. They're hard-working people who probably have two jobs! They get snatches of information and a lot goes by that they should be aware of. And I think we, the public, should just pay a lot more attention. We have an administration which ignores the Constitution. They rewrite the laws in their favor. It's not the American way!

Casey: Well, I guess I would disagree that the Administration has ignored the Constitution. I think they take the Constitution very seriously. They just have a different view of certain of the President's powers than their critics. I would like to respond to something on the "signing statement" issue. The signing statement to the McCain-Graham amendment [which forbade torture]... The President in his signing statement along with a number of other points said he would interpret that consistent with his Constitutional authority. That's all he said. That is routine. It is virtually boiler plate. There are dozens of examples where presidents -- this president, President Clinton.... -- said exactly the same thing. Particularly in the foreign policy area where Congress is often trying to intrude on the president's powers and the president says, I understand this bill but I'm going to interpret it consistent with my Constitutional authority. They are not saying that they will not obey this law. As near as I can tell, they have every intent of obeying this law.

Fein: Why would you state it unless you thought you might disobey it! It's just gratuitous! And this is the way the President is suggesting that he might have authority to torture individuals even if it's prohibited by Congress, even if it's prohibited by treaty, if he thinks it's important to gather foreign intelligence. That's not the only over-reaching element. The theory of the Administration has been, with regard to the warrantless surveillance, is that all of the world is a battlefield. There's no longer a distinction between a military and civilian sector because Osama bin Laden and Al Qaeda have threatened to kill us wherever they can find us. And therefore any battlefield tactics customarily associated with the Battle of the Somme or Operation Overlord can be undertaken on the streets of the United States of America. And there have been suggestions -- and it was staggering to me -- that the President could shoot somebody on the streets of the US if he suspected they were Al Qaeda because it's a battlefield, whether it's outside Domino's Pizza or otherwise! These kinds of exaggerated claims that indicate that we have a president who doesn't really understand limits and, as James Madison pointed out, we're inclined to lose our liberties on the installment plan, not when we look into the precipice!

Rehm: Mickey Edwards, I know that you have a relationship with the Vice President, with the President. What's going on here? Are Americans being inappropriately frightened? Or somehow having red flags waved in front of them inappropriately? What's happening?

Edwards: Well, I think there are a couple of things happening. One is that more and more raw politics is trumping the Constitution and separation of powers, and there's no question from statements he's made a number of times that Karl Rove, the President's chief political adviser, believes that this terrorism issue or security issue is the trump card for Republicans against the Democrats. And so the more the President is able to frame anything he wants to do as necessary in order to protect the country, they see it as a way to hold political power. I think that's part of it. Dick Cheney, who I served with in Congress, had previously been chief of staff to a president -- his previous experience had been in the executive branch -- he believes presidents are entitled to a great deal more power than I think the Constitution gives them. It's kind of interesting -- you mentioned foreign policy. This is a president who believes that presidents are in charge of foreign policy. I've read the Constitution quite a few times and I still haven't found that in there but I know this president believes it is. So... I think what we have here in this administration is a very dangerous coming together of arrogance and incompetence. And that's a bad, bad brew.

Casey: Well, as to the foreign policy: yes, this president believes he is in charge of foreign policy. Every one of his predecessors believed that. John Marshall on the floor of the House of Representatives said, "The president is the sole organ of the United States in foreign policy." Now obviously Congress often disagreed and there are often fights. Sometimes Congress wins and sometimes Congress loses. But this president did not somehow make up the claim that the president is in charge of foreign policy.

Fein: That statement by the Chief Justice [John Marshall] was in relation to negotiating with foreign governments not conducting war. In fact, as Chief Justice he wrote two opinions reprimanding the executive branch for trying to confiscate enemy property in times of war. He said, "This is only the prerogative of the legislative branch." So Lee is grossly misinterpreting the John Marshall statement. Presidents have not in the past assumed they had all of the prerogatives in times of warfare. Abraham Lincoln, when there were emergencies, always turned to Congress to get ratification for what he was doing. This president sneers at any sense that Congress has any role at all to play in appropriating money and establishing procedures for fighting terrorists.

Rehm: To Lancaster, Pennsylvania, good morning, John!

John: ...One of the things that doesn't come up -- but just did -- is that statement about arrogance and incompetence. I don't think there would be so much furor on both sides... On the Republican side they're just protecting the Party, on the Democratic side if they could see some level of competence... Over and over again it's [demonstrated] that the President is not competent. Kevin Phillips, who has the new book "American Theocracy," was on Pacifica this morning. His description of Bush was that he would make a good second vice-president of the Bank of Amarillo. And this is a Republican conservative making that statement!

Rehm: Any comments from you, Lee Casey? There have been a great many statements to the effect that not only has this administration over-reached but it has over-reached without firm grounding.

Casey: In terms of its grounding, it has always had a solid argument in terms of precedence in the Supreme Court. You may disagree with those precedents, and in some cases the Court has said no, you've misread them. Well, fine. Keep in mind that the Administration has followed the Court's orders -- they make arguments in Court and when they lose they follow the Court's orders. That is what the rule of law means. As to the people criticizing the President... all presidents... At least they haven't called him "an original gorilla" which is what they called Abraham Lincoln. That's just politics and you live with that.

Rehm: Is there any evidence that there is less judicial independence now than there has been in the past? Bruce Fein?

Fein: I don't think with regard to the actual decision-making. And the Congress has not successfully enacted legislation that would curtail jurisdiction. I would testify to some hearings in which they were contemplating impeaching justices and judges they disagreed with. But it didn't go forward. But it's the rhetoric out there the sense of defense of the judiciary that's more important now than in the past precisely because Congress has shrunk to something like an inkblot. And with regard to the President's claims of constitutionality for everything he's done, he's purposely avoided a test of the constitutionality of this warrantless wiretapping by the NSA by refusing to go to the FISA and say, Here's information we've received from the wiretapping, we're using it to support a petition for a warrant, and it's legal, and therefore use it! So he's evading rather than accepting judicial review.

Edwards: I agree with what Bruce said. There are other kind of examples. The Congress has certainly intruded on the discretion of judges with things like mandatory minimum sentencing and so forth. So there are a lot of examples over the years in which the Congress has stepped in and tried to assert itself as opposed to the judicial role. The Congress under the Constitution clearly has the right to limit what the courts do. I'm active as the director of the Constitution Project and we've taken up that issue. I think whether you agree or disagree with ability of Congress to limit the courts, there's no question that limiting the courts would be very bad policy.

Edwards: Well, the Constitution Project is kind of like its title says. Bruce and I have worked together on some of the things in that organization in a non-partisan and philosophical way to insure the Constitution's provisions are upheld. For example, we have a task force that I chaired on war powers, as to where the war power actually resides. What we're trying to make sure is that neither party and neither philosophy veers from what the Constitution requires.

Rehm: ...caller from Groton, Connecticut.

Donald: The Constitution in its First Amendment is very clear that Congress shall make no law abridging Freedom of Speech or of the press. But this is exactly what was accomplished by the McCain-Feingold Campaign Reform Act, signed into law by Mr. Bush. And rubber stamped by five Supreme Court justices when they heard McConnell vs. FEC judging the constitutionality of McCain-Feingold. Justice O'Connor was among the five who rubber stamped this patently unconstitutional violation of the right of the people to print and speak freely.

Casey: Well, I'm inclined to agree with the caller's analysis of the underlying legislation. I think it was unconstitutional. But a lot of people disagree, and most importantly at least five members of the Supreme Court disagreed. So for the time being, it's the law and we have to obey it.

Fein: There has been criticism of the decision and the Court has indicated by, in a couple of cases, rehearing election campaign limitation cases that they may reexamine some elements of McCain-Feingold. That's the process we accept and why we encourage criticism of the decisions but not impeachment of the judges.

Edwards: I think thanks to this caller we've found an area that we agree on!

Rehm: Mickey Edwards, what do you think are the implications now of Chief Justice Roberts and Justice Alito on the bench?

Edwards: I wrote an article that appeared in Roll Call, the big publication on Capitol Hill, calling to account the members of the US Senate for the fact that... I had no particular problem with Roberts or Alito -- I think they could both be very good justices -- but I thought the Senate did not live up to its responsibilities to challenge them much more forcefully on the question of where they thought presidential powers were limited. It's a very critical issue at this moment. They should have asked more about where the president's powers end and where Congress's powers begin. They didn't do that. There's too much we don't know about where they'd stand in this regard.

Rehm: Lee Casey, how do you think the Court may change, move, rearrange itself, with those two?

Casey: Well, it's really speculation. Justice Alito is probably more conservative than Justice O'Connor, but how that plays out in individual cases is impossible to predict.

Fein: I think if you look through the historical sweep of the US Supreme Court over two centuries, it has never veered very strongly away from mainstream orthdox thinking, whether it's called legal thinking or philosophical thinking. We have the problem of judicial excesses from time to time, but they're vastly overstated. In terms of destroying the Constitution, the executive branch is far more menacing than the judicial branch will or ever would be.

Rehm: And you consider that to be happening as we speak?

Fein: I think we're at least a step down that road and that's one step too far.